House Approves Bill With Treaty-Limiting Provisions as Veto Bait

May 27, 2011

By Elaine M. Grossman

Global Security Newswire

(May. 27) -U.S. Representative Michael Turner (R-Ohio) spearheaded several measures in the House fiscal 2012 defense authorization bill that would limit how the nation can carry out a new U.S.-Russian strategic nuclear arms control treaty. The House of Representatives endorsed the legislation on Thursday, despite a White House veto threat (U.S. Representative Michael Turner photo).

WASHINGTON -- The U.S. House of Representatives on Thursday passed legislation that limits how nuclear arms reductions mandated by a new treaty with Russia can be implemented (see GSN, May 25).

The $690 billion defense authorization bill for fiscal 2012 ties nuclear force reductions to Obama administration reports on how the White House intends to modernize the nuclear arsenal.

So-called "New START Implementation" provisions in the bill also restrict the administration's ability to cut deployed or nondeployed nuclear weapons below levels set by the accord, unless required by a treaty or authorized by Congress.

Washington and Moscow signed New START in April 2010 and, after ratification by both sides, the pact entered into force in February. The agreement dictates reductions in each nation's deployed strategic nuclear warheads to 1,550, down from a ceiling of 2,200 called for by an earlier treaty. It also caps fielded strategic nuclear delivery systems at 700, with an additional 100 platforms allowed in reserve.

Under certain conditions, the House defense authorization measure also prohibits the executive branch from eliminating weapons from the so-called nuclear "hedge force" until a new plutonium facility at Los Alamos National Laboratory in New Mexico and a uranium facility at Oak Ridge, Tenn., are up and running (see GSN, May 10).

The United States maintains a number of warheads in reserve in case a resurgent threat develops or a major technical problem is discovered in deployed weapons. Construction of the two facilities, which will be capable of handling warhead-making materials, is not expected to be complete until the mid-2020s at the earliest.

House and Senate defense authorization bills set policy for Defense Department programs and expenditures for the coming fiscal year, which begins on October 1. The Pentagon cannot spend funds in fiscal 2012, though, until separate appropriations legislation is passed by both chambers and signed into law.

The White House budget office warned on Tuesday that the New START-related provisions -- spearheaded by House Armed Services Strategic Forces Subcommittee Chairman Michael Turner (R-Ohio) -- could trigger a presidential veto.

The legislative initiative "would set onerous conditions on the administration's ability to implement the treaty, as well as to retire, dismantle or eliminate nondeployed nuclear weapons," according to a "Statement of Administration Policy" circulated on Capitol Hill. It could also hamper the capacity "to support the long-term safety, security and reliability of our nuclear deterrent," the Office of Management and Budget statement reads.

To monitor the status of aging warheads in the U.S. stockpile, the Energy Department routinely disassembles a small number of weapons and studies whether they remain safe and effective. Under Turner's initial version of the New START Implementation provisions, even warhead dismantlement for safety reasons would have been prohibited, according to Nickolas Roth and Stephen Young of the Union of Concerned Scientists.

Before taking a final 322-96 tally on the authorization bill, though, the House by voice vote on Thursday passed an amendment in which Turner clarified the New START Implementation wording to permit such warhead eliminations, if necessary for safety- and effectiveness-monitoring of the nuclear arsenal.

Turner's altered language also would allow for "the dismantlement of legacy warheads that are awaiting dismantlement" at such time as the bill provisions become law. This would mean that the administration could eliminate warheads from the hedge force that are already in the queue for destruction.

Even after Turner tweaked the bill language, "the real problem" with the legislation is that it "severely limits the ability of the president and the U.S. military to determine the size and structure of U.S. nuclear forces," nuclear-weapon analysts Roth and Young argued in a second blog post this week.

However, it is far from clear that the New START restrictions will ever find their way to the Oval Office. Limitations on treaty-based reductions are unlikely to make it into the Senate version of the fiscal 2012 defense authorization bill, which is slated for a Democratic-controlled committee mark-up beginning the week of June 13.

Senator Jon Kyl (R-Ariz.) on Thursday introduced legislation similar to Turner's that would curb the president's latitude on nuclear arsenal policy. A legislative aide on Wednesday attributed a two-week delay in filing the bill, dubbed S. 1097, to the Senate Republican whip's busy schedule.

Kyl unsuccessfully led Senate opposition to New START ratification late last year (see GSN, Dec. 23, 2010). He said earlier this month he hoped his chamber might wrap New START Implementation provisions into its own version of the defense authorization bill, much as the House has done.

Nonetheless, the Senate's Democratic majority -- perhaps joined by some Republicans who broke ranks with their leadership last December to vote in favor of ratifying New START -- is expected to reject such limits on treaty-related matters (see GSN, Dec. 22, 2010).

Once the Senate passes its defense authorization bill, a conference committee of House and Senate lawmakers must meet to negotiate compromise language. The resulting conference measure, if passed by both legislative bodies, would then go to the White House for a presidential signature or veto. The entire process is expected to take several more months.

A veto based on New START issues might remain in the offing even if the language on limiting strategic nuclear warhead reductions is eliminated, the administration policy statement warned.

One provision also included in the House bill would hinder the president's ability to change the U.S. nuclear strategy from "counterforce" to "countervalue" targeting -- a shift that Republicans have charged is under consideration by the Obama administration and could result in an "immoral" increase in civilian casualties during a nuclear war.

Counterforce typically refers to military targets, while countervalue suggests that the casualties would be largely civilians.

Democratic lawmakers have argued that U.S. nuclear targeting strategy has long put a potential adversary's cities at risk, regardless of which party has been in the White House. This is because a significant number of military and industrial targets are located near large population centers.

The Obama team went a step further. Although the bill language allows such changes if certain White House reports and certifications are issued, the administration statement asserts that Congress simply does not have the latitude to impose limits on a president's management of the arsenal.

The measure "raises constitutional concerns as it appears to encroach on the president's authority as commander in chief to set nuclear employment policy -- a right exercised by every president in the nuclear age from both parties," the budget office said in its statement. "If the final bill presented to the president includes these provisions, the president's senior advisers would recommend a veto."

The House-passed bill also aims to prevent the president from unilaterally withdrawing U.S. tactical-range nuclear weapons from Europe. Kyl and Turner have warned against this type of move, absent an agreement for reciprocal action by Russia. A U.S. pullback could occur only after certain presidential certifications are made and solely if requested by a European host nation, according to the new House bill.

In its budget office statement this week, the Obama administration said it "strongly objects, including on constitutional grounds," to congressional limitations on "the president's ability to determine military requirements in Europe, conduct diplomacy, and negotiate treaties."

The White House also protested against bill provisions that would make it difficult for Washington to exchange missile-defense technology data with Moscow, and would block the administration from agreeing with Russia to limit a U.S. defensive shield in any way.

The Obama administration is talking with the Kremlin on potentially cooperating on missile defenses in Europe, though it could be years before any integrated system is put in place (see GSN, May 26).

On Tuesday, Turner took to the House floor to challenge the White House veto threat over the New START Implementation provisions.

"By this threat, is the president saying he does not intend to implement the nuclear modernization guarantees that were part of the New START treaty? Does the president intend to unilaterally withdraw nuclear forces from Europe?" the Ohio lawmaker asked. "Does the president want to share sensitive data of missile-defense technology with Russia? And does the president intend to strike deals with Russia to limit our missile-defense capabilities?

"If the answers to these questions is 'no,' then the administration should have no objections to these provisions," Turner continued. "If, on the other hand, the answer to these questions is 'yes,' then it is all the more reason to make these provisions law."